How are the courts satisfied that there has been an ‘irretrievable breakdown of the marriage’

Australian law no longer requires a reason to be given for an application for divorce, however, there must still be proof of an ‘irretrievable breakdown of the marriage’ in order for a divorce to be granted by the courts.

The question that is worth asking is: how are the courts satisfied that there has been an ‘irretrievable breakdown of the marriage’? Readers should be aware, that s 48 of the Family Law Act 1975 (the FLA) states that the courts will only make an order for divorce if the parties have demonstrated that there has been an irretrievable breakdown of the marriage by separating from one another for at least 12 months.

Furthermore, there are several additional elements that also form part of the definition of separation which is considered essential when proving an irretrievable breakdown of the marriage so an order for divorce can be granted.

How can the end of the marriage be proven?

The Act does not explicitly state what are the characteristics for establishing separation, but rather the conclusion of the union will be proven if there has been a change in the overall character of the relationship, rather than any examples of fighting or adultery.

Admittedly, some people may presume that the characteristics of a good marriage revolve around the notions of quiet coexistence which is based on monogamy, the law, however, does recognise that marriages can still continue to function without peaceful coexistence and monogamous sexual relations. Instead, when making a determination in regards to the change in the overall character of the relationship, the courts will look into the full circumstances surrounding the breakdown of the relationship that might include the following lines of inquiry:

• whether the parties still live together;
• whether the parties still engage in sexual relations;
• whether the parties attend social functions or present themselves in public as a couple;
• whether the parties care jointly for any children;
• whether the parties still support and protect one another.

It should be reiterated that there is no fixed formula which will point to a definitive method when determining the end of a marriage, but rather, the courts will look towards the natural indicators from before, to after, the alleged separation in adducing evidence of the breakdown of a marriage.

Must the desire for separation be mutual?

There is no requirement that both parties want a separation, however, a marriage cannot come to an end without informing the other party of the desire to put an end to the relationship. Communication of a desire to end a marriage can be done either explicitly, through words, or by actions which clearly demonstrate an inclination that the marriage is over.

The importance of the separation date
The date of separation is an important element when granting an order for divorce because of the s 48 requirements under the Act, which mandates that a couple have remained apart from one another for at least 12 months.

The 12 month separation period is also important because it affects when child support and Centrelink benefits will become payable, as well as assisting the courts in calculating property settlements.

The conclusion of a marriage is never an easy thing, however, if you are experiencing any problems relating to separation, please seek the assistance of a qualified legal practitioner.